Social media impacts legal landscape: Attorneys use Facebook, other social media during divorce, custody cases

Attorneys like Abigail Klamert in Buda (above) are warning their clients about the dangers of social media during a divorce or custody case. She said it can prove that what the opposing party says is happening is not what’s happening.

by KIM HILSENBECK

Advice from a divorce lawyer these days may include “stop using Facebook.” Or they may warn clients, “Be careful what you tweet.”

Abigail Klamert, a family law attorney in Buda, said divorce attorneys are very keen on social media and use it to monitor behavior.

“I’ve had situations where we found social media was a significant asset to a case,” she said. “Social media sites are an absolute treasure of information on the opposing party.”

During the past 13 years Klamert has been practicing law, she has seen a connection between the rise in social media and problems in divorce and custody cases. So much so that she routinely cautions new clients about their behavior, both in real life and online.

“When we meet with clients, we are very clear of the impact of social media on their case. Behavior is very important,” Klamert said.

It’s not just clients posting potentially damning evidence, either. Klamert said she has seen many cases where a friend posts something about a client or tags that person in a photo.

“Tags have caused a lot of problems,” Klamert said. “Be careful what you put on social media and if your friends tag you.”

Tagging is a way to identify people in a photo that also appears on that person’s Facebook page.

Klamert warned, “Friends can reveal information about you that you might not have posted yourself.”

She provided an example of an issue with social media she has dealt with professionally.

“Let’s say you’re going through divorce. You go out with friends to a bar; you’re all drinking shots, everyone raises a glass. Someone takes a photo and Instagrams it.”

Instagram, a photo-sharing site, is one of the more recent additions to the social media mix.

“That friend tags the photo and everyone in it, then posts it on her Facebook page,” Klamert said. “That shows up on your Facebook page, too. You’ve now created a visual piece of evidence.”

She said drinking in a bar is not really a concern by itself.

“But what about if the photo is with someone you’re having an affair with? Or it’s 12 hours before possession of a child the next day and you have an injunction against you and aren’t supposed to be drinking?” Klamert asked.

“We find those photos and use them,” she said, “routinely.”

She said while the specific methods for finding information used by her practice are confidential, everything is done within the letter of the law.

“We do not engage in unlawful wiring tapping or hacking. Those are crimes,” Klamert said. “We don’t pretend to be someone else to get information.”

Is the information found allowed to be entered into court testimony and record of the proceedings?

Klamert said electronic data is absolutely admissible in court, provided it is shown to be credible and reliable.

“Just as with traditional evidence, such as phone calls and photographs, there has to be someone that can testify to social media data,” she said.

That testimony may include the person who took the photo affirming that he or she took a photo, when it was taken and the subject matter.

According to an August 2011 blog by attorney Joe Cordell on the Huffington Post website, social media sites such as Facebook, Twitter and Google Plus have become a treasure trove of information for divorce attorneys. Cordell says it’s thanks to people’s insatiable need to overshare on social media sites.

Cordell’s blog warned readers of those seemingly innocuous posts, saying they can cause big problems in divorce cases.

“People will post pictures to show their friends their new set of golf clubs, the car they just bought, or how much they’re enjoying the Jamaican resort’s all-inclusive daiquiris,” he wrote. “But they don’t realize how those pictures can come back to haunt them when they claim they can’t possibly afford to pay a certain level of child support or alimony.”

While social media may be damaging for the opposing party, Klamert said she has found it to be very useful in settling a case.

“Social media can prove that what the opposing party says is happening is not what’s been happening,” she said.

She also warned that evidence includes emails, text messages and any other form of communication.

Anyone thinking they should delete text messages and take down posts and photos from Facebook should reconsider, Klamert said. Destroying evidence in anticipation of litigation, called spoliation, is illegal.

According to Klamert, “the court can place sanctions against a party that intentionally alters, destroys or tampers with evidence.”

At her practice, this point is driven home in divorce cases especially if an affair is alleged.

“We send a letter to the opposing party saying they are not to destroy any electronic data,” she said.

That may include anything from their home, office, cell phone and social media.

The reality, Klamert said, is that social media has made practicing family law much more challenging.

“There is a larger world of evidence to gather and control and manage,” she said. “There are more evidentiary hurdles to overcome.”

Klamert recommended that anyone involved in a divorce case use common sense when it comes to social media.

“For example, make sure your child is not your friend on Facebook if you post a picture of your new girlfriend before you are even divorced,” she said.

She also said people should learn the rules about privacy and security settings if they’re going to use a social media site such as Facebook.

“I encourage people to unfriend someone when you don’t want that person to have any information about you,” Klamert said.

She also noted that her own Facebook page is, as she put it, “very boring.”

One final caution about electronic media: Klamert said an electronic archive of data can be retrieved even after someone deletes that information.

“It’s still there. And we can find it,” she said.

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